Employment Law Daily Telling coworker of chest pains might be sufficient FMLA notice
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Wednesday, February 24, 2016

Telling coworker of chest pains might be sufficient FMLA notice

By Lorene D. Park, J.D. Denying cross-motions for summary judgment on a truck driver’s FMLA interference and retaliation claims, a federal district court in Maryland found questions of fact on whether the employee left the job site because of a serious health condition or because he was angry, whether asking his coworker to tell the manager he was leaving due to chest pains constituted sufficient notice of a need for FMLA leave, and whether the employer’s reason for the termination (violating notice policy and voluntarily quitting job) was pretextual (Greene v. YRC, Inc., February 19, 2016, Garbis, M.). The employee, who worked as a truck driver out of the employer’s Baltimore dispatch center, received treatment for chronic high blood pressure and high cholesterol. On the night of October 25, 2012, he received a call at his Pennsylvania home asking that he appear at the Baltimore terminal at 1:00 a.m. on October 26 to receive a dispatch. He was irritated at being woken up, but agreed. He then called the terminal manager to complain about being awakened and to claim he was entitled to an additional 15 minutes’ pay for trouble he had a few days earlier with a trailer door. The manager refused to discuss the pay and the employee accused him of “hostility.” Chest pains. Upset by the interaction, the employee had chest pains, stomach pains, and shaking hands. Nonetheless, he accepted his dispatch at 1:15 a.m., thereby becoming responsible for the freight load. As he was hooking the trailer up to the truck, his symptoms worsened. His chest was hurting, his hands were shaking, he was having trouble breathing, and he was unable to calm himself. He believed he might be having a heart attack and felt unable to drive his normal route to North Carolina. Wishing to notify a supervisor but too sick to find one, he asked a nearby coworker to tell the terminal manager he needed to leave due to chest pains. He went to his car and drove back home, calling the terminal manager from the road to confirm that the coworker delivered the message. Termination. At 4:59 a.m. the same morning, the terminal manager emailed the labor manager to recommend that the employee receive a discharge letter for a “voluntary quit” under the CBA due to his failure to notify a supervisor before leaving sick. Unaware of the recommendation, the employee saw his doctor later that day. The doctor found his blood pressure elevated and wrote a note that he was having “health issues” and should be excused from work from October 26 until November 4. The doctor electronically signed the note at 1:43 p.m., and the employee faxed the note to the employer “at some point thereafter.” Just after 4:00 p.m. the terminal manager notified the employee by telephone that he was terminated due to his “voluntary quit” earlier that day. The employee filed suit alleging FMLA interference and retaliation. FMLA interference claim. Denying the parties’ cross-motions for summary judgment on the employee’s FMLA interference claim, the court noted that the employer conceded for purposes of its motion that the employee suffered from a serious health condition. In addition, the court found that the employee’s telling a coworker he was having chest pains and had to leave could have been sufficient to put the employer on inquiry notice that he might require FMLA leave. However, a reasonable jury could alternatively find that the evidence showed the employee left the job site due to anger rather than a serious health condition. Because there was circumstantial evidence supporting either position, including “somewhat internally inconsistent” testimony by the coworker concerning what the employee told him before leaving, summary judgment was not appropriate for either party. Moreover, the court found questions of fact on whether the manner of the employee’s notice of his need for FMLA leave was sufficient. Under applicable regulations, when the need for leave is unforeseeable, an employee “must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” Though the employer asserted that the employee did not properly provide notice, there were questions on what the usual and customary notice requirements were and whether the employee complied. FMLA retaliation claim. Summary judgment was also denied on the retaliation claim. Though the employer offered a non-retaliatory reason for firing the employee (he violated a notice policy and walked off the job), a jury could reasonably find for either party on the question of whether that reason was pretextual. For example, the employee asserted that the company had never fired an employee for failing to notify a supervisor before leaving work and that it had not fired other drivers who committed violations that were “more serious” than his own conduct. He also argued that the “voluntary quit” provision of the CBA dealt only with loss of seniority, and did not deal with discipline so he could not have been terminated under that provision. Moreover, while the employer gave three examples of employees who were issued discharge letters for walking off the jobsite, the employee claimed they were distinguishable. Specifically, he asserted that one of those drivers had committed numerous disciplinary infractions, the second was fired for failing to speak to management about an accident in which he was involved, and the third apparently did give notice to his supervisor before going home sick so he was fired for another reason. Given that these questions of fact prevented summary judgment for either party, the court felt no need to delve further into the parties’ contentions and responses.

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